Daily Archives: October 23, 2017
Five types of gun laws the Founding Fathers loved
Saul Cornell, Fordham University
The Second Amendment is one of the most frequently cited provisions in the American Constitution, but also one of the most poorly understood.
The 27 words that constitute the Second Amendment seem to baffle modern Americans on both the left and right.
Ironically, those on both ends of our contemporary political spectrum cast the Second Amendment as a barrier to robust gun regulation. Gun rights supporters – mostly, but not exclusively, on the right – seem to believe that the Second Amendment prohibits many forms of gun regulation. On the left, frustration with the lack of progress on modern gun control leads to periodic calls for the amendment’s repeal.
Both of these beliefs ignore an irrefutable historical truth. The framers and adopters of the Second Amendment were generally ardent supporters of the idea of well-regulated liberty. Without strong governments and effective laws, they believed, liberty inevitably degenerated into licentiousness and eventually anarchy. Diligent students of history, particularly Roman history, the Federalists who wrote the Constitution realized that tyranny more often resulted from anarchy, not strong government.
I have been researching and writing about the history of gun regulation and the Second Amendment for the past two decades. When I began this research, most people assumed that regulation was a relatively recent phenomenon, something associated with the rise of big government in the modern era. Actually, while the founding generation certainly esteemed the idea of an armed population, they were also ardent supporters of gun regulations.
Consider these five categories of gun laws that the Founders endorsed.
Today American gun rights advocates typically oppose any form of registration – even though such schemes are common in every other industrial democracy – and typically argue that registration violates the Second Amendment. This claim is also hard to square with the history of the nation’s founding. All of the colonies – apart from Quaker-dominated Pennsylvania, the one colony in which religious pacifists blocked the creation of a militia – enrolled local citizens, white men between the ages of 16-60 in state-regulated militias. The colonies and then the newly independent states kept track of these privately owned weapons required for militia service. Men could be fined if they reported to a muster without a well-maintained weapon in working condition.
#2: Public carry
The modern gun rights movement has aggressively pursued the goal of expanding the right to carry firearms in public.
The American colonies inherited a variety of restrictions that evolved under English Common Law. In 18th-century England, armed travel was limited to a few well-defined occasions such as assisting justices of the peace and constables. Members of the upper classes also had a limited exception to travel with arms. Concealable weapons such as handguns were subject to even more stringent restrictions. The city of London banned public carry of these weapons entirely.
The American Revolution did not sweep away English common law. In fact, most colonies adopted common law as it had been interpreted in the colonies prior to independence, including the ban on traveling armed in populated areas. Thus, there was no general right of armed travel when the Second Amendment was adopted, and certainly no right to travel with concealed weapons. Such a right first emerged in the United States in the slave South decades after the Second Amendment was adopted. The market revolution of the early 19th century made cheap and reliable hand guns readily available. Southern murder rates soared as a result.
In other parts of the nation, the traditional English restrictions on traveling armed persisted with one important change. American law recognized an exception to this prohibition for individuals who had a good cause to fear an imminent threat. Nonetheless, by the end of the century, prohibiting public carry was the legal norm, not the exception.
#3: Stand-your-ground laws
Under traditional English common law, one had a duty to retreat, not stand your ground. Deadly force was justified only if no other alternative was possible. One had to retreat, until retreat was no longer possible, before killing an aggressor.
The use of deadly force was justified only in the home, where retreat was not required under the so-called castle doctrine, or the idea that “a man’s home is his castle.” The emergence of a more aggressive view of the right of self-defense in public, standing your ground, emerged slowly in the decades after the Civil War.
#4: Safe storage laws
Although some gun rights advocates attempt to demonize government power, it is important to recognize that one of the most important rights citizens enjoy is the freedom to elect representatives who can enact laws to promote health and public safety. This is the foundation for the idea of ordered liberty. The regulation of gun powder and firearms arises from an exercise of this basic liberty.
In 1786, Boston acted on this legal principle, prohibiting the storage of a loaded firearm in any domestic dwelling in the city. Guns had to be kept unloaded, a practice that made sense since the black powder used in firearms in this period was corrosive. Loaded guns also posed a particular hazard in cases of fire because they might discharge and injure innocent bystanders and those fighting fires.
#5: Loyalty oaths
One of the most common claims one hears in the modern Second Amendment debate is the assertion that the Founders included this provision in the Constitution to make possible a right of revolution. But this claim, too, rests on a serious misunderstanding of the role the right to bear arms played in American constitutional theory.
In fact, the Founders engaged in large-scale disarmament of the civilian population during the American Revolution. The right to bear arms was conditional on swearing a loyalty oath to the government. Individuals who refused to swear such an oath were disarmed.
The notion that the Second Amendment was understood to protect a right to take up arms against the government is absurd. Indeed, the Constitution itself defines such an act as treason.
Gun regulation and gun ownership have always existed side by side in American history. The Second Amendment poses no obstacle to enacting sensible gun laws. The failure to do so is not the Constitution’s fault; it is ours.
Saul Cornell, Paul and Diane Guenther Chair in American History, Fordham University
This article was originally published on The Conversation. Read the original article.
Austerity’s enduring appeal has ancient roots in asceticism
Sarah Macmillan, University of Birmingham
The recent easing of the public sector pay cap suggests that the government is beginning to respond to widespread concerns about the social and economic costs of austerity. Yet despite this turn, the proposed rises remain below real-terms inflation. Plus, the need for continued austerity is justified in terms of being “fair” to those who must pay for wage increases as well to as those who will receive them.
Despite increasing opposition, austerity remains a potent force in politics today. This should not surprise us. The modern narrative of austerity has a long cultural history, which we can trace from medieval religious writers to 20th century philosophers.
Part of austerity’s appeal is that it justifies present suffering through the promise of future prosperity. No matter what the arguments against austerity, from past and present economists, the huge cost for public services is somehow seen as a price worth paying. Philip Hammond, chancellor of the exchequer, insists that “we must hold our nerve … and maintain our focus resolutely on the prizes that are so nearly within reach”.
This language is telling. It is part of an ongoing narrative about how restraint and self-denial are good for you. This perceived moral value is not without precedent. Historically, there have been numerous cultural manifestations of austerity that shed light on its enduring appeal and the rhetoric associated with it.
Austerity is closely related to the ancient concept of asceticism, the art of abstinence practiced by Greek and Roman philosophers, continued by medieval religious writers, and made famous by the theorist Max Weber in his 1922 book Economy and Society. Asceticism has many definitions, usually equating a simple life to a moral one. It is often seen as religious, an ideology based on the fact that present self-denial will enable future liberation from want.
Biblical scholar Richard Valantasis puts this in very positive terms, calling asceticism the “dream of being a better person” in his book on the subject, The Making of the Self. But Weber extends the religious and philosophical dimensions of asceticism to economics when he argues that capitalism is inherently ascetic, suggesting that it thrives through self-restraint and hard work.
Weber equates asceticism and rationality; austerity, he says, is both sensible and logical, and it provides the individual with inward fulfilment. Thus, when governments pursue austerity policies and accuse their opponents of being selfish and wasteful, they draw on a cultural narrative that views self-denial as ethically, morally, and even spiritually, correct.
This is certainly the language that former chancellor of the exchequer George Osborne, used in June 2010 when austerity was first introduced in the UK. His emergency budget valorised austerity as moral:
It pays for the past. And it plans for the future. It supports a strong enterprise-led recovery. It rewards work … Yes, it is tough; but it is also fair.
Promise and purpose
The idea that austerity is “tough” but good for you echoes ascetic ideals clearly. Asceticism is a formative process as it shapes an individual through hard work (in Weber’s view) and gruelling self-denial (in the view of medieval writers). The fourth-century bishop Athanasius of Alexandria – a father of the Christian church – characterised the moral life as one of renunciation and suffering. He also praised discipline and labour as virtues that will lead to pleasing God, and ultimately to the rewards of heaven.
The story of present suffering leading to future prosperity therefore weaves concerns about one’s current struggles into a grander narrative of purpose. It gives an unstable life meaning through discipline, and according to the cultural critic Geoffrey Galt Harpham, leads to understanding of oneself, one’s community, and one’s place in the world.
These ascetic ideals remain imbued in Western cultural thinking and suggest why the narrative of modern economic austerity has stuck for so long. Austerity provides a sense of purpose, of striving for achievement, and of self-control. This is evident in the way that austerity is sold to the public – hence Hammond’s comment:
After seven long and tough years, the high-wage, high-growth economy for which we strive is tantalisingly close to being within our grasp. It would be easy to take our foot off the pedal. But instead we must hold our nerve.
By using the language of shared experience, shared struggle, and shared results, austerians attempt to construct a collective identity that unites people in their vision. The fact that austerity affects people in drastically different ways is secondary to creating the sense that we are striving for a common good. In the Middle Ages it was promoted to give spiritual meaning to physical deprivation. Today it does the same for economic hardship.
There is nothing wrong with the ideals of asceticism per se. Self-control and self-restraint are admirable qualities and have been praised throughout history. The problem is when these qualities are evoked on a national scale to justify economic self-harm.
The Conservatives’ loss of their majority in the most recent election suggests that those experiencing austerity might be beginning to turn against it. But those for whom austerity provides a powerful sense of rational order, a coherent narrative that makes constancy out of instability, and an economic purpose with the allure of morality, are unwilling to abandon it.
The narrative of austerity resonates strongly because of its history. We now require a powerful counter-narrative to promote the positive benefits of investing in public services and communities.
Sarah Macmillan, Teaching Fellow in Medieval Literature, University of Birmingham
This article was originally published on The Conversation. Read the original article.